Judge Strikes Down State Constitutional Amendment

Photo by Anthony Garand on Unsplash

Judge Collins of the Third Division of the Superior Court ruled two amendments to the North Carolina Constitution, effectuated by N.C. Session Laws 2018-117 and 2018-128are now void.  Judge Collins wrote in his opinion, “an illegally constituted General Assembly does not represent the people of North Carolina and is therefore not empowered to pass legislation that would amend the state’s constitution.”


Judge Collins is referring to when the General Assembly redrew the legislative districts for both the North Carolina Senate and House of Representatives, which was enacted in July 2011 through N.C. Session Laws 2011-402and 2011-404.   That redrawing was held to be unconstitutional and impermissible because the Court found that the General Assembly considered race during the redrawing in Covington v. North Carolina. That Court held race was the predominant factor motivating the drawing of all challenged districts. The Court, as the result of an unconstitutional racial gerrymandering, struck down the legislation that drew the twenty-eight challenged districts.  Even after an attempt by the General Assembly to redistrict the legislature maps, it was still determined that the map was racially gerrymandered and rejected as unconstitutional even as the 2018 electionsoccurred.


Prior to the 2018 elections, the General Assembly passed six bills that would place six constitutional amendments before the voters of North Carolina: (1) right to hunt and fish; (2) extended rights for victims of crimes; (3) establishment of the first Board of Elections; (4) judicial vacancy selection; (5) a tax cap; and (6) requirement of a voter ID.


The North Carolina NAACP and the CAC filed suit against the leadership of the North Carolina General Assembly in their official capacities to remove the amendments from the ballot in 2018; however, they lossthat suit because the Court held they did not have standing.  In a separate suit, the NC NAACP and CAC filed a motion for summary judgment that the illegally-constituted General Assembly lacks the authority to propose constitutional amendments.  Before the motion could be heard, however, the 2018 elections occurred on November 6, 2018.


North Carolina voters votedin favor of adding more rights for crime victims, an income-tax cap, protection for hunting and fishing, and a requirement for voters to show photo identification as amendments to the state constitution. The voters rejected the other two amendments.


After amending their complaints, the NC NAACP and CAC were heard by Judge Collins on January 15th, 2019.  Judge Collins then ruled in favor of the plaintiffs, striking down the Voter ID amendment and the income tax limit amendment as unconstitutional and void.


The NC NAACP, or the National Association for the Advancement of Colored People in North Carolina, is a nonprofit civil rights organization founded in 1938.  The organization has over ninety active branches and over 20,000 members throughout North Carolina.  The North Carolina NAACP is the largest NAACP conference in the South and second largest NAACP conference in the United States.  Its mission is “the advancement and improvement of the political, educational, social, and economic status of all people and to eliminate racial hatred and discrimination.”


Judge Collins opined that members of the North Carolina NAACP, who include African-American and Latino voters in North Carolina, and the NAACP itself, were directly harmed by the proposed Voter ID constitutional amendment.  Judge Collins reasoned that their members would be “effectively denied the right to vote or otherwise be deprived of meaningful access to the political process as a direct result of the Voter ID requirement.” In addition, Judge Collins ruled the Voter ID amendment will also impose costs and substantial and undue burden on the right to vote for members of the NC NAACP and others.


While opposition to Voter ID laws passed by the General Assembly has been successful in the past, this time is different.  In 2016 the Fourth Circuit of the United States Court of Appeals ruled in NC NAACP v. McCrorythat the photo identification provisions enacted by the North Carolina General Assembly were passed with racially discriminatory intent and the provisions unlawfully targeted African-Americans voters with “almost surgical precision.”  In that case, the Court struck down passed legislation.  In this case, the Court is striking down an amendment approved by the voters of North Carolina.


The North Carolina State Constitutionstates that the people of North Carolina “have the inherent, sole, and exclusive right of regulating the internal government and of altering their Constitution and form of government whenever it may be necessary to their safety and happiness.”  Article XIIIof the North Carolina Constitution mandates that the Constitution may be amended only when a three-fifths supermajority of both chambers of the General Assembly vote to submit a constitutional amendment for public ratification, and the public then ratifies the amendment.


However, in this case, the United States Supreme Court declared the North Carolina General Assembly was an illegally gerrymandered body. Therefore, the General Assembly had presumptively lost its claim to popular sovereignty.  In order to cure this illegality, over two-thirds of the North Carolina House and Senate districts had to be redrawn.  As a result, Judge Collins opined, “the unconstitutional racial gerrymander tainted the three-fifths majorities required by the state Constitution before an amendment proposal can be submitted to the people for a vote, breaking the requisite chain of popular sovereignty between North Carolina citizens and their representatives . . . . Accordingly the constitutional amendments placed on the ballot on November 6, 2018 were approved by a General Assembly that did not represent the people of North Carolina.”  Therefore, the amendments are void.


The NC NAACP lauded the opinion.  NAACP president Rev. T. Anthony Spearmanstated, “we are delighted that the acts of the previous majority, which came to power through the use of racially discriminatory maps, have been checked.”  He went further stating, “The prior General Assembly’s attempt to use its ill-gotten power to enshrine a racist photo voter ID requirement in the state constitution was particularly egregious, and we applaud the court for invalidating these attempts at unconstitutional overreach.”  The NAACP has been in opposition to Voter ID lawsthroughout the United States, stating that laws requiring voters to have identification suppresses minority groups from voting.  The NAACP relies on national studiesto support their position, which tend to show a correlation in the enactment of Voter ID laws and the number of minorities that turnout to vote before and after such laws are enacted.


The ruling by Judge Collins also comes with controversy and opposition.  North Carolina Republican Party Chairman Robin Hayessays that the Collins ruling is a constitutional overreach. He stated, “these amendments were placed on the ballot and passed by an overwhelming majority of North Carolinians . . . . This unprecedented and absurd ruling by a liberal judge is the very definition of judicial activism.”  North Carolina Senator Ralph Hisealso stated, “One man with a political axe to grind invalidated millions of votes and potentially dozens of laws, including the state budget,” when referring to Judge Collins, a registered Democrat.  In addition, North Carolina Senate leader Phil Berger’s office said in a statement, “by Judge Collins’ logic all laws approved from June 2017, when the United States Supreme Court struck down the old maps, to last December could be voided too.”


Currently, thirty-fivestates in the United States require some form of identification from voters at the polls.  The other fifteenstates require other methods of identification such as signing an affidavit, a signature, or by providing accurate biographical information.


Since 2000 there have been 1,177 cases of voter fraud, with approximately 1,019 criminal convictions throughout the United States, as several studieshave reported.  While the number of reported cases may be disproportionately small compared to the hundreds of millions of votes cast legally during that time period, Republican lawmakersworry that cases of voter fraud undermine the Democratic process.  In response, the number of voter identification laws has increased throughout the United States to “instill confidence in the democratic process.”


This case presented here is a case of first impression for the courts of North Carolina.  The Office of North Carolina Senator Berger’s comments do raise concerns amongst all lawmakers in the General Assembly.  To what effect, if any, will this ruling affect the other laws passed by the General Assembly, including the annual budget passed?  Republican lawmakers have vowedto appeal this decision to the North Carolina Court of Appeals.  Depending on that ruling, it could get to the Supreme Court of North Carolina where six of the seven current justices are registered Democrats.  Two of which, Chief Justice Beasleyand Associate Justice Mark Daviswere recently appointed to their positions by Governor Cooper. Governor Cooper has opposedthe amendments since they were proposed by the General Assembly to be on the ballot in the 2018 elections.


Only time will tell if the amendment will survive both the North Carolina Court of Appeals and the Supreme Court of North Carolina.  If struck down, the General Assembly would have to propose the amendment again in the 2020 election.

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About Harrison Broadbent (7 Articles)
Harrison is a third-year student at Campbell School of Law and currently serves as an Associate Editor for the Campbell Law Observer. Originally from Wilmington, North Carolina, Harrison majored in political science and minored in sociology at N.C. State University. The summer after his first year in law school, Harrison interned at both the Supreme Court of North Carolina for the Honorable Senior Associate Justice Newby, and the McDonald Firm, PLLC in Wilmington, North Carolina. During his second year, Harrison interned at the Forrest Firm, LLC., served as the President of Christian Legal Society, and served as Dean of Delta Theta Phi Fraternity. During the summer of his 3L year, Harrison utilized the third-year practice rule by interning at the Wake County District Attorney’s Office. This fall, Harrison will intern at the United States Bankruptcy Court of the Eastern District of North Carolina for the Honorable Judge Warren. While at Campbell School of Law, Harrison earned his Masters in Trust and Wealth Management. He is interested in working in the public sector after graduating from school and taking the North Carolina BAR examination.
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